#### Conkling *et al. versus*Westbrook.

1. Staler made an application in 1768; a warrant for another tract was taken out in 17,93 by Kellam, who became owner of both; Smith took warrants in January, 1851; the surveys were returned in February. 1851; the surveys on Kellam’s application and warrant were returned on the same lands in March and April, 1851. *Held,*that the Kellam title was postponed to Smith’s.

2. According to a custom in the surveyor-general’s office the dates of the receipt of returns to surveys are marked in pencil on them, and handed to the survey clerk for examination; Smith’s surveys were so marked in pencil. These pencil-marks were sufficient evidence of the dates of the returns. *Per.*Dreher, P. J., approved, by Supreme Court.

3. From the great lapse of time between the warrant and returns of .survey of the Kellam tract, the law presumes the abandonment of the application and warrant. *Id.*

4. There was evidence of surveys on the warrant about its date. This would not avail, as they had not been returned into the land office. *Id.*

5. A title under a 'descriptive warrant, pursued with due diligence, commences from its date; of an indescriptive from the survey.

March 20th, 1872.

Before Thompson, C. J., Sharswood, and Williams, JJ. Agnew, J., at Nisi Prius.

Error to the Court of Common Pleas of /Pike County. Of January Term, 1872, No. 217.

This was an action of ejectment brought December 30th, 1869, by John C. Westbrook against Esther Conkling and others, for two tracts of land in Palmyra Township, Pike County, containing together about 858 acres.

The case was tried December 21st, 1870, before Dreher, P. J.

The plaintiff claimed under two warrants to William Smith, one dated January 23d, 1851, and survey February 3d, 1851, for 431 acres and 6 perches; the other dated January 29th, 1851, and survey February 4th, 1851, for 427 acres 12 perches. The defendants claimed under a warrant dated March 25th, 1793, to Moses Kellam, the purchase-money having then been paid, surveyed March 21st, 1851, for 485 acres 86 perches, and patent March 16th, 1870; also, application of Abraham Shaler for John Shaler and others, of October 14th, 1768, and survey April 28th, 1851, for 171' acres and 73 perches. The defendants are the heirs of Moses Kellam. Ephraim Kellam testified that for thirty years Moses Kellam, father of witness, claimed to be owner of the lands, and. exercised acts of ownership over them ; he had timber cut on them for the past thirty years ; the lands were assessed to Moses Kellam on the seated assessment list. This witness testified also that he was a surveyor, and had traced the lines of the Kellam survey, and found marks as far back as seventy years ; and also the Shaler survey, and found marks as far back as about forty years ; in 1862, also, he found other *82marks; thought he would have ho difficulty in locating the land and the warrant of March 25th, 1793; all of Moses Kellam’s lands were placed on the seated list and taxes paid on that list. Moses Kellam died in 1861. Witness did not know of anji lumber having been cut after the Smith warrant was laid.

There was other evidence to the same effect.

The seated' list showed that Moses Kellam and his heirs paid the taxes from 1842 up to the time of the suit.

It was admitted that the Smith tracts were at various times assessed in his name, whilst the same lands were assessed in Kellam’s name.

The facts are fully stated in the following charge of Judge Dreher, which was approved by the Supreme Court:

* * * * ***

“ The following facts have been agreed upon by counsel as evidence in the case, viz.: ‘ That on warrant dated January 29th, 1851, to William Smith, survey was made, February 3d, 1851, and on warrant dated January 23d, 1851, to William Smith, survey was made Februai’y 4th, 1851; that the surveyor to whom directed sent returns of said two surveys to the surveyor-general’s office at Harrisburg, by mailing same at Pike County, February 21d, 1851, and that said surveys are found on file in said office indorsed thereon in pencil, “ February 27th, 1851.” That on warrant to Moses Kellam, dated March 25th, 1793, in pursuance of an order of survey received by the surveyor, March 20th, 1851, survey was made March 21st, 1851, and an application of John Shaler, dated October 14th, 1768, in pursuance of an order of survey received by the surveyor, April 28th, 1851, that said survey on said warrant to Moses Kellam is found on file in the surveyor-general’s office, indorsed thereon, in ink, “April 10th, 1851;” also, agreed, as stated in writing, by Robert A. McCoy, the present chief clerk in the surveyor-general’s office, that it is the present custom, as he believes it to have been that of all the chief clerks who have preceded him, to mark in pencil on returns of survey' the date of receipt and hand them over to the survey clerk for examination. Oftentimes these examinations are not made for days or weeks, and the pencil-mark thus made as a memoz’andum is treated as the date of reception, and other proper entries made accoz’dizigly.’ We chaz-ge you that under this agreed evidence, the returns of survey to the surveyor-gezzeral’s office wez’e made, and (the memoranduzns in pencil-maz’k are sufficient evidence of the dates of returns).

“ The plaintiff has given in evidence a number of deeds deducing the title from William Smith, the warrantee, to *83the plaintiff for the land in dispute. The plaintiff has thus shown a perfect and good legal title to the lands, and is entitled to recover, unless the defendants have shown a better title or claim in themselves or some other party.

“ In ejectment the plaintiff must recover upon the strength of his own title, and not on the weakness of his adversary’s. It is, therefore, sufficient for the defendants to show title in themselves or a third party.

“ The warrant to Moses Kellam is descriptive, and if the defendants, or those under whom they claim, have used due diligence in having the survey made thereon and returned to the land-office, their title will commence from the date of the warrant. The application in the name of John Shaler is indescriptive, and the defendants’ title to the land covered by that application would commence with the survey, if defendants used due diligence in having the survey,returned to the surveyor-general’s office. You will notice from the dates that the survey on fhe Kellam warrant was not made until near fifty-eight years after the warrant was issued, and on the application of Shaler the survey was not made until eighty-two years and six months after the application, and both after the Smith warrants had been issued and the surveys made and returns thereon.' We say to the jury that (the defendants and those under whom they claim, having for so long a time neglected to have these surveys made and returned, and the title under the Smith warrant having in the meantime intervened, the law presumes an abandonment of the Kellam warrant and Shaler application, and the Smith warrants and surveys will hold the land).

“ The defendants have called witnesses to prove that these are old marks, and evidence of surveys on the ground, in the case of the Kellam warrant dating back some seventy years, and in the case of the Shaler application, dating back some forty years, and from these marks and evidences of survey argue that survey had actually been made upon the ground, many years before the Smith warrant was issued; that Moses Kellam claimed the lands, had them assessed and paid the taxes thereon, and took timber therefrom for many years before the title of Smith accrued, and that all this was notice to the world of Kellam’s claim; and gave him such title or superior claim that no one else could gain any title to the land as against him or the present defendants his heirs. That Kellam having paid the purchase-money to the Commonwealth, he was the equitable owner of the land, and the Commonwealth had no right to grant new warrants to Smith or any one else. There is no evidence to show who made the marks on the ground, or that a deputy surveyor *84ever made any official survey on the Kellam warrant, or Shaler application prior to 1851, and not until after the Smith surveys were made and returned. (Even if the surveys, as argued by the defendants, had been made, they would not avail defendants in this suit for the reason that they were never returned to the surveyor-general’s office.)

“ The defendants have also given in-evidence an application in the name of Daniel Shaler, dated October 14th, 1868, and a survey thereon for William Nyce, July 27th, 1845, and returned to the surveyor-general’s office, April 13th, 1846, for 318 acres and allowance. If the evidence showed that this application and survey covered any of the land in dispute, it would avail the defendants and be a good defence to so much of the land as it covered. But the only witnesses who speak of this are Ephraim Kellam, who says that he does not know whether it does or does not', and Lafayette Westbrook, who says, that the Smith surveys- do not cover any portion of the land covered by the Daniel Shaler survey. There are therefore no facts in this case to submit to the jury, and we instruct you as matter of law, that under all the evidence, your verdict must be for the plaintiff.”

The verdict was for the plaintiff.

The defendants sued out a writ of error. They assigned for error the portions of the charge in brackets, and the instructions of the court that the verdict should be for the plaintiff. •

*Cr. G. Waller,*- for plaintiff in error.

The negligence of the surveyor in not making a return should not be visited on the purchaser: Lilly *v.*Paschal, 2 S. & R., 400; Adams *v.*Jackson, 4 W. & S., 74. A shifted location is good against a person who had actual notice before his title commenced, although the survey was not returned: Kyle *v.*White, 1 Binney, 246. The Kellam warrant being descriptive, the title attached from date: Lauman *v.*Thomas, 4 Binney, 57; McDowell *v.*Young, 12 S. & R., 129. A survey on the ground is always notice when it is sufficient to put the party on inquiry: Moses *v.*Shaver, 6 S. & R., 133; Boyles *v.*Kelly, 10 Id., 217; Hughes *v.*Stevens, 7 Wright, 197 ; Drinker *v.*Hunter, 2 Yeates, 129.

*W. Davis*and *J. JE. Dimmick.*

If a survey be not made within a reasonable time after the warrant, the right is postponed to an intervening one: McGowan *v.*Ahl, 3 P. F. Smith, 90 ; Steinmetz *v.*Logan, 5 Watts, 518. As against an intervening right the survey must be returned within seven years: Strauch *v.*Shoemaker, 1 W. & S., 166 ; Cham*85bers *v.*Mifflin, 1 Penna. R., 78; Zerbe *v.*Schall, 4 Watts, 138. A survey not returned into tbe land office is not notice: Hole *v.*Rittenhouse, 1 Casey, 497. The long delay raised a presumption of abandonment: Goddard *v.*Gloninger, 5 Watts, 209; Star *v.*Bradford, 2 Penna. R., 397 ; Henry *v.*Henry, 5 Barr, 248.

Judgment was entered in the Supreme Court, March 25th, 1872.

Per Curiam.

No decision, old or recent, we think, would have justified the learned judge below in holding otherwise than that the lapse of time from 1768, in the case of the application of Abraham Shaler, and from the date of the warrant to Moses Kellam, in 1793, without surveys returned, even if ever made, and without residence, would be postponed to a junior warrant, dated, surveyed, and returned, in 1851. That was the defendant’s condition under the evidence in this case. The court committed no error in any part of the charge, and the judgment is therefore affirmed.